dotCommonweal

CHA to HHS: Drop definition of 'religious employer.' Seriously.

Today the Catholic Health Association released its comment (.pdf) on the Department of Health and Human Services proposal to accommodate religious employers' objections to the contraception mandate. From the beginning, CHA has objected to the structure of the mandate's exemption, which defines a religious employer as one that "primarily" serves and hires co-religionists, and whose purpose is the inculcation of its values. Still, when the Obama administration announced its intent to shift the responsibility of providing contraception coverage from religious employers to insurance companies, CHA praised the plan. Now, after studying the "advance notice of proposed rulemaking" (ANPRM), CHA says its initial concerns are "not relieved":

We continue to believe that it is imperative for the Administration to abandon the narrow definition of religious employer and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health care organizations and other ministries of the Church.

Rather than stick with a narrow definition of religious employer without precedent in federal law, CHA recommends using Section 414 (e) of the U.S. Code to develop a new one. "Under those principles," the CHA argues, "an organization would be covered by the exemption if it 'shares common religious bonds and convictions with a church.'" CHA's letter includes draft language that would bring the definition in line with established law. What's more, as the CHA points out, changing the definition along those lines "could help address the serious constitutional questions created by the Departments current approach, in which the government essentially parses a bona fide religious organization into secular and religious components solely to impose burdens on the secular portion." HHS has never indicated how it planned to adjudicate employers' claims to a religious exemption. It's hard to imagine any method that wouldn't be a bureaucratic nightmare. Ditch the definition of religious employer and we'll never have to find out.Back to the CHA:

If the government continues to pursue the policy that all employees should have access to contraceptive services, then it should find a way to provide and pay for these services directly without requiring any direct or indirect involvement of religious employers, as broadly defined.

According to the ANPRM, the administration's goals include providing contraception coverage without cost sharing to employees of nonexempt employers with religious objections "in the simplest way possible." Have a look at the ANPRM. Anything about it strike you as simple? The argument could be made that there's nothing terribly complex about having insurers independently offer free contraception coverage to enrollees of nonexempt employers, but what about self-insured institutions? Most of the theories floated in the ANPRM are mind-boggling. What could be simpler than having the government offer contraception coverage to women whose employers have religious objections to providing it? And, as CHA notes, there's precedent for federally funded access to contraception in Medicaid family-planning waivers and in Title X. The ANPRM itself suggests providing contraception coverage through a multi-state policy offered on state insurance exchanges, scheduled to go live in 2014, in compliance with the Affordable Care Act.Last month, after Cardinal Donald Wuerl promised that "the problem goes away if that definition [of religious employer] is changed," I suggested that the Obama administration ask itself three questions: Is that definition worth the trouble it created? How does it serve the administration's policy goals? And is it the only way to achieve those goals? The Catholic Health Association believes the answer to the last question is no. Indeed, if the administration follows CHA's lead, then even more women would be covered -- because, under the proposed accommodation, women who work for fully exempt religious employers would not be eligible for free contraception.In four days, the comment period for the ANPRM ends. The administration would be wise to heed CHA's advice -- and to do so quickly. Backtracking, of course, has never been the most popular of political maneuvers. But, in this case, it might be the smartest. If HHS deep-sixes the disputed definition, what happens to the lawsuits? What happens to the Fortnight for Freedom? Does the president really want to answer questions about this during the debates? Allowing this controversy to simmer much longer could end up costing him key votes -- and health-care reform itself.

Comments

"an organization would be covered by the exemption if it 'shares common religious bonds and convictions with a church. "So a Catholic Taco Bell owner WILL be exempt? Nonsense!That definition is broad enough to drive a popemobile through.

Hmm. This kind of approach by a group who have supported the Health Care Bill (and been criticized heavily for it) may carry more weight than any of the activities of the Ad Hoc Committee for Religious freedom. Maybe this will take the wind out of the "Fortnight for Freedom" sails.

"The administration would be wise to heed CHAs advice "Nah. Here's some better advice he'd be wiser to heed. Tax the hospitals. And/or prohibit the hospitals from receiving federal funds of any kind for any purpose.

This is huge. Thanks for noting it, and more importantly, clearing explaining it. This is what I have been hearing murmurs of and if the CHA is proposing it then it is likely that they have not only been discussing it with the bishops but also with the Obama Administration. This would also clearly meet the concerns of an extremely important player in the USCCB, Cardinal Wuerl.

Jimmy Mac, the definition the CHA refers to is in a Section named "26 USC PART I - PENSION, PROFIT-SHARING, STOCK BONUS PLANS, ETC" and defines what organizations can include their employees in a church pension plan. It's not as wide open as the quote makes it seem (the organizations have to be non-profit, etc).I think that the CHA is smart in not getting into the detail of what a similar deal for defining what organizations would be exempt from the HHS mandate would look like. For the moment, just saying "make it like this existing definition" makes it more salable. Afterwards, a bunch of lawyers will have to work on what the exact language will be. Does anyone here know of any examples of Catholic hospitals that have been able to have their employees covered by a diocesan pension plan rather than one the hospital set up itself?

Correction: Did not spell check.OK. Hope that the HHA is not being pressured into making this statement by the powers to be but it sounds like a more measured response than the over the top USSSB response. Thank you, sisters.

Sorry, I hadn't read the letter from the CHA when I posted that. They have proposed precise language and it doesn't seem to limit the exemption to non-profit organizations:

147.130(a) * * *(1) * * *(IV) (B)(1) For purposes of this subsection, a religious employer is(a) a church or a convention or association of churches (hereinafter included within the term church) which is exempt from tax under 26 USC 501; or(b) an organization, whether a civil law corporation or otherwise, which is either controlled by or associated with a church.(2) For purposes of this subsection(a) The term church includes a religious order or religious organization if such order or organization (1) is an integral part of a church, and (2) is engaged in carrying out the functions of a church, whether a civil law corporation or otherwise.(b) An organization is associated with a church if it shares common religious bonds and convictions with the church.http://www.chausa.org/WorkArea//DownloadAsset.aspx?id=9239

It may be that the CHA didn't want to write language that would exclude for-profit organizations, since the USCCB is pushing including them. As CHA says in a footnote:

2 As the representative of Catholic hospitals and health care providers, which will be impacted in their role as employers, CHA focuses its comments on this aspect of the APRNM. We acknowledge, but will not address here the issues about whether the mandate itself is constitutional and whether it should apply to other entities, such as, insurers or individuals. The United States Conference of Catholic Bishops has persuasively addresses these points it its comment letter.

Thomas More Law Center filed a suite on behalf of Legatus (catholic business owner's associTion) and one of its members: Weingartz Supply Company and it's president. The complaint says (in part):

71. Plaintiff Daniel Weingartz, the President of Plaintiff Weingartz Supply Company, is an active member of Plaintiff Legatus.72. As a member of Legatus, Plaintiff Daniel Weingartz is an ambassador of the Catholic Faith and follows the teachings of the Catholic Church.73. Plaintiff Weingartz Supply Company, along with W & P Management LLC and its subsidiaries employ a total of 170 employees including 60 part-time employees.http://www.thomasmore.org/sites/default/files/files/Legatus%20Complaint%...

Sounds as if Weingartz Supply could fall within the exemption as drafted by CHA.

"(b) An organization is associated with a church if it shares common religious bonds and convictions with the church."This sounds extremely indefinite to me. Does the organization have to share *all*, *most*, *many*, or just *some* common religious bonds and convictions with a church/religion? And what sort of "bonds" does this cover? All sorts? Some? Which sorts?

If the administration adopts the CHA proposal, it will be something of a kick in the teeth to the Fortnight of Freedom campaign. If I were an organizer of the Fortnight, I would quickly start using the definition of religious organization as proposed by the CHA. This way if it's adopted, I could claim victory for the campaign and use that victory to strengthen my base to expand the campaign to other religious freedom issues. That's what I would do, anyway.

Gallicho has it exactly right; it would be wise for the Obama Administration to backtrack immediately on the mandate. That move may have political consequences either way, but to stand pat with the key Catholic ally now lined up with the bishops would be more damaging to the reelection campaign. The Administration should never have gone down that path in the first place.

Irene Baldwin, just join Legatus, founded by Tom Monaghan. You need to own or manage a company of a certain size and pay dues of $3,000 a year, of which $300 is a donation to the Vatican. Here's the Legatus promo video:http://www.youtube.com/watch?v=hnXU4mjTOvo&feature=youtube_gdata_playerIn a sense,Legatus is an upscale version of the KofC, so the lawsuit raises he question of whether religiously-oriented non-profit employers like the KofC and Legatus ought to be exempt from providing contraceptive coverage for their own employees. I think that is different from the question of whether a for-profit company like Weingartz Supply Co should be exempt. Mr. Weingartz raises his membership in Legatus as evidence of the depth of his religious convictions, but I'm not sure how you make a distinction between people who are deeply religious and sort-of religious.

"What could be simpler than having the government offer contraception coverage to women whose employers have religious objections to providing it?"And what could be simpler than having Wal Mart have the government, i.e., us give food stamps and other benefits to employees to whom they don't want to pay a living wage? Yah, yah, food is a necessity and birth control isn't, though you'll get push-back on that from a lot of non-Catholics who'll tell you that using hormone therapy to control endometriosis in order to avoid a hysterectomy or preventing pregnancy that would exacerbate an existing illness ARE health care issues. Some, like my evangelical co-worker, would argue that not having a larger family than you can afford is a mental health care issue, particularly since her church apparently tells couples that they should have a once-a-week "date night" to maintain the health of their marriage. And she's not talking dinner and a movie strictly speaking.In any case, this proposal seems llke a shell game to me. Instead of the hospital paying for birth control, you get individuals to do it through taxes. And some of those individuals are Catholics. The Hyde Amendment prevents those Catholics from paying for government-funded abortions, and you'll get the same kind of movement if you try to get them to pay for other people's birth control. (Unless you're Rush Limbaugh, in which case you'll just want to make sure to get in on the action you paid for with tax dollars.)

The birth control mandate in the health care law just isn't on the radar for most Americans. They don't care. If a recent Pew study is correct; the objections to the health care bill overwhelmingly revolve around the mandate to have any health care insurance or pay a penalty, and that's what's before the Supreme Court. http://www.people-press.org/2012/06/15/obama-health-care-law-where-does-... Moreover, Catholics are now more Republican than Democrat (though the plurality of Catholics seems to identify as independent, see another Pew study here http://www.people-press.org/2012/06/04/section-9-trends-in-party-affilia...), which makes them unlikely to support anything Obama might suggest in the way of compromise.So, just from a Machiavellian POV, what does Obama gain by compromising with Catholics on this? They're not going to support his health care plan, and they're not going to vote for him. Bart Stupak, a good Catholic himself, already tried to compromise on this stuff, and look where it got him. Bitched out by strangers in airports.

Instead of the hospital paying for birth control, you get individuals to do it through taxes. And some of those individuals are Catholics. The Hyde Amendment prevents those Catholics from paying for government-funded abortions, and youll get the same kind of movement if you try to get them to pay for other peoples birth control.The Hyde Amendment allows the government to pay for abortions in the case of rape, incest or danger to the life of the mother. Through their taxes, Catholics do pay for those.

Jean:The polling on Catholics this season has been fluid. You're overreaching when you say they won't vote for Obama. I don't know that he'll win the Catholic vote this time (he did in '08), but it's not just about the national totals. It's about how much you win or lose by in the states that matter most. The crazies will always be with us. That doesn't mean you take political or policy cues from them.

Grant, I may turn out to be wrong about the Catholic vote, and I hope I am, but I'm not sure I'm "overreaching" out of the realm of the possibility, anyhow. Wouldn't you agree that it's pretty damn dicey for Obama among Catholics, maybe not there on Riverside Drive in NYC, but Out Here is sure is?Here are some recent figures.http://politicalticker.blogs.cnn.com/2012John Hayes, yes, thanks for the correction. It doesn't change my overall contention: If Catholic organizations don't have to pay for birth control and the cost gets passed on to taxpayers, some of whom are Catholic, nothing has really been solved. Catholics will still continue to object that they shouldn't have to pay for/collude in something their religion teaches is a sin.OK, now, even if I see more replies after I hit "submit" I really AM gonna get up and dust.

Bruce:"So what happens to medicare and medicaid beneficiaries? You want to force them to find another hospital?"They die, I guess. Or maybe the the Catholic "Church" treats them at their own tax-exempt expense for their own reasons, like Matt 25:40 says they should.It's really very simple. If the "Church" wants to defy federal, civil authority, I'm okay with that. Really. But it can't both defy it and depend on it.

A question for Grant, John Hayes, and anyone else who has something helpful to say.If the issue is indeed freedom of religious exercise, as a constitutional (and therefore a legal) issue, then is it not ultimately up to the legal authorities to de3termiine what counts as a religious organization and what counts as a legally recognized exercise of its religious principles? if so, then what would happen if the "Legatus" case that John Hayes mentions is decided in its favor? There is Rev. Dollar's Church and Gospel of Prosperity. Could not it form a group like Legatus and then determine that any government regulation that it considered incompatible with the prosperity of its members would be an impermissible restriction on its exercise of its religion?In short, from a constitutional standpoint, if Legatus were to prevail. would the government's overall capacity to regulate businesses be seriously undermined?Situations like this give me even more reason to accept William Galston's argument that church-state matters cannot be definitively settled, but rather they have to be prudently managed, with both sides recognizing the importance of this prudence. Regrettably, I see no evidence that the USCCB acknowledges the line of argument that Galston advances. I hope that I'm wrong about this.

Jean,Curious about your claim that Republican Catholics outnumber Democratic Catholics, i went searching. I could not find anything at the CNN site. Maybe I am too impatient to wade through, or too thickheaded to search.I did find this analysis from the Pew Forum:http://www.pewforum.org/Politics-and-Elections/Trends-in-Party-Identific... says 48% of Catholics are Democrats and 43% Republican. That is a HUGE gain, from 53/37 in 2008. But the nonWhite portion keeps Dems ahead of Reps among Catholics; White Catholics are 49/42 Rep/Dem. I would have guessed that, since Hispanics are largely Dem and a growing segment of the Church. I would be interested if you know any more.

They die, I guess.I hope you mean the hospitals, not the medicare and medicaid beneficiaries. Otherwise, it seems you are quite willing to sacrifice other human beings to make your political statement.

Bruce:No. I meant the Medicare/Medicaid recipients, although having the hospitals die wiould be a decent second-best scenario.It won't be until people start dying that either Church extortion for ideological purposes or insurance company extortion for profit-maximization purposes related to the delivery of health care services will hit home to the American citizenry. And that then they'll vote to end the extortion."[Y]ou are quite willing to sacrifice other human beings to make your political statement."Why is it so sinful for me to be so willing to do so when the CHA is doing the exact same thing? If the CHA doesn't want to follow federal law related to provision of a standard benefits package to their employees, the solution is very simple. Get out of the business of hiring employees.

The bishops are really getting tiresome. Vat II says that religious compromises must be made in a pluralistic society. But the bishops don't seem to believe that. Cdl. Dolan is talking about martyrdom, as if he and others could possibly win in an actual physical confrontation with the U. S. government. But they can't, so such a battle would be immoral by just war theory itself. Either way, the bishops can't win, morally or politically. Enough already, bishops. You're looking like paper tigers. You wanna fight? Go pick a fight you can win.

Bernard, accepting that "the Constitution means what the Supreme Court says it means," I don't see any constitutional right to refuse to provide coverage of contraceptives under the HHS mandate. After the Smith decision, it seems that about the only kind of law or regulation that would be unconstitutional under the "prohibit the free expression" language would be one that had no rational purpose other than to interfere with someone's free expression of religion.The way that religious beliefs are accommodated in our system of government is through the political process. Congress writes provisions into laws that provide religious exemptions to some parts of those laws; the administration writes provisions into regulations that do the same. It is a process of negotiation to balance competing interests. That is why Catholic hospitals, doctors and staffdo not have to perform abortions - and why federal funds cannot be used to pay for elective abortions. Members of Congress wrote the exemptions into laws either because of their own beliefs or because they realized that it was politically necessary to do it.Arguing that you have a constitutional right to an exemption may be counterproductive if it prevents you from engaging in constructive negotiations to get the best compromise that the political realities will allow. That seems to be what has happened in this situation until now. The CHA letter is encouraging in that it has put forward draft language for a solution. It may not get exactly what it has proposed, but at least it has begun the process of finding a political compromise.I've passed over RFRA because that is a law - meaning it is part of the political process rather than the Constitution. Essentially, that is Congress setting standards that laws it passes and regulations the administration establishes must meet. It's possible that the court might find that the contraception mandate violates RFRA and must fall because it is illegal even if not unconstitutional. Opinions vary. Mine is about 50/50.

"The CHA letter is encouraging in that it has put forward draft language for a solution."That's what seems to have been missing from the approach of the U.S. Bishops, although they will say that they tried to compromise. After all, they set up an Ad Hoc Committee for Religious Freedom in the fall of 2011. (In part it is paid for by an increase of 3% of the subsidy paid to the USCCB by each diocese ). Then, they try to rile up the laity with explosive rhetoric, even at Mass. I want no part of such tactics.

Abp. Lori in his column on Fortnight for Freedom in his archdiocesan paper (6/14) includes a factor I don't recall having heard before: "And not only would churches be forced to fund abortion-inducing drugs, sterilization and contraception in violation of their teachings, they would also be forced to counsel employees on the advisability of using them." Is such required counseling part of the mandate under discussion? If so, that appears to add complexity to the employer issues beyond providing the insurance or not. http://www.catholicreview.org/article/commentary/archbishop-lori/fortnig...

"they would also be forced to counsel employees on the advisability of using them.And where did that come from all of a sudden?Can it be as untrue as the rumor about the Muslim exemption that Bishop Bruskewitz brought to the table at the USCCB meeting last week.

"Enough already, bishops. Youre looking like paper tigers. You wanna fight? Go pick a fight you can win."I'd say they're doing a pretty good job winning this one. First, Notre Dame files suit, now CHA adopts, in essence, the argument they have been making with respect to the unduly narrow definition of "religious employer" since it emerged. Yet still, with some here, those bishops are nothing but a bunch of blowhards. Makes you wonder who the partisans really are.

Jim McK, the link I posted doesn't take you to what I was looking at. I apologize.I can't post the graph, but here's the text that describes the trends:"Pluralities of white Catholics (39%) and white mainline Protestants (38%) now identify as independents. In 2008, Democrats held a slight edge among white Catholics, while white mainline Protestants were divided in party affiliation (33% independent, 30% Democrat, 30% Republican)."The report above was dated June 4, 2012, and only looked at white Catholics.The link you noted, from a report in February of this year, is more inclusive. It shows a trend among ALL Catholics to lean GOP. As you noted, the Dem/GOP "lean" among all Catholics in 2008 was 53/37 percent; now it's 48/43. So the Democrats no longer have a majority among Catholics; only a plurality, and the GOP has made some big gains.Pew may have a study somewhere that looks specifically at Hispanic Catholics, which is where Obama may have majority support, but in a desultory search of the site, I couldn't come up with anything that from the last couple of years.My guess is that contraceptive accommodation for Catholic organizations would not be high up on the list of concerns for Hispanic Catholics and turn them against Obama. Last I remember hearing, labor and immigration issues were at the top of their list.Moreover, I don't think that finding accommodation for contraception is going to make white Catholics more likely to vote for Obama. He's still, in many circles, "the most pro-choice president ever."Maybe someone with something useful to say can find more info ...

Addendum:AnnThey have a very high powered group of lawyers in the Ad Hoc Committee Fro Religious LIberty.As to the counseling issue:they would also be forced to counsel employees on the advisability of using them.Advisability may have been a poor choice of words by Bishop Lori.The mandate reads and RELATED (my caps) patient education and counseling for all women with reproductive capacity.As I read the mandate, (and I am not by a long stretch a lawyer) the counseling has to do with how the contraceptives can be used, the side effects, etc. - something like the information in package inserts or at the end of TV ads (viagra?).

The nuns are winning, Jeff, not the bishops. Even if the nuns' argument is the same (and I'm not sure it is), their behavior, their lack of exaggerated rhetoric, is quite different, so people don't think they're blowhards. (Your word, not mine.) And, yes, ND does lose sometimes.

Regarding Bp. Lori's statement on counseling, here's the HHS announcement from last August. it includes counselling in the description of what the insurance covers. The employer isn't required to do the counseling - just pay or the insurance that covers it and the contraceptives.

Contraception and contraceptive counseling: Women will have access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling. These recommendations do not include abortifacient drugs. Most workers in employer-sponsored plans are currently covered for contraceptives. Family planning services are an essential preventive service for women and critical to appropriately spacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.http://www.healthcare.gov/news/factsheets/2011/08/womensprevention080120...

"As I read the mandate, (and I am not by a long stretch a lawyer) the counseling has to do with how the contraceptives can be used, the side effects, etc. something like the information in package inserts or at the end of TV ads (viagra?)."Say, for argument purposes, churches were not exempt from the mandate (which they ARE), since when are employers responsible for direct patient education and counseling? Answer: Never. Again, Lori is dissembling. Those employers covered by the mandate -- and not covered by the President's compromise proposals -- would be responsible for purchasing insurance plans that cover contraceptive prescriptions, treatments AND counseling. They wouldn't be required to do the counseling themselves. (One could chuckle at the Archbishop's audacity here, but given the fact that thousands of the faithful will whatever the bishops say, including that their government is against them, it's NOT FUNNY).

Ann said: "This sounds extremely indefinite to me. Does the organization have to share *all*, *most*, *many*, or just *some* common religious bonds and convictions with a church/religion? And what sort of bonds does this cover? All sorts? Some? Which sorts?"As I said in the very first post: this definition is broad enough to drive a popemobile through.If I own a business that makes Catholic religious articles and am an "orthodox" Catholic , obviously sharing common religious bonds and convictions with my church, why WOULDN'T I be covered?

"As to the counseling issue:they would also be forced to counsel employees on the advisability of using them."Helen --About these services, the Federal register mentions them in "I. Background" section:"In the HRSA Guidelines, HRSA exercised its discretion under the amended interim final regulations such that group health plans established or maintained by these religious employers (and any group health insurance coverage provided in connection with such plans) are not required to cover any contraceptive services."It mentions the services earlier, but neither statement says what those "contraceptive services" are. Later it says, "If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees."This, again, doesn't say what "services" means. Does it simply mean contraceptive coverage? The next paragraph also speaks ambiguously of "coverage" and "services">In Section II. it says:"Throughout this ANPRM, the term accommodation is used to refer to an arrangement under which contraceptive coverage is provided without cost sharing to participants and beneficiaries covered under a plan independent of the objecting religious organization that sponsors the plan, which would effectively exempt the religious organization from the requirement to cover contraceptive services. . . . And contraceptive coverage means the contraceptive coverage required under the HRSA Guidelines."Again, the words "coverage" and "services" seem to be used here synonymously. Strange.